3. Case Studies: Mexico and Peru on Quality Education
3.3. Remedies
3.3.1. Access to Justice in Latin America
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communication strategies that would reflect how girls feel unsatisfied with her gender at the age of ten. Or, one would better understand the travel burden facing families and children to have access to a school, namely safety concerns and costs. Possible changes would include in shifting the start and end times of school days or, better yet, the building of a school closer to dispersed rural communities.
International customary law and UN human rights treaty provisions require a system or reparations and justiciability when the State party violates human rights. The right to education, as a commonly perceived social or 2nd generation right, is more complex for establishing standing.
As the next subchapter explains, access to justice in Latin American courts, namely Mexico and Peru, is no simple matter.
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Constitucional to address violations on social rights in 2004. However, Peru’s la Carta of 1979 the catalog of social rights protected by the constitution came about, influenced primarily by the Spanish Constitution of 1978 and UN Human Rights Treaties, namely ICESCR.269
At the regional level, the Inter-American Commission for Human Rights has established its own court, the Inter-American Court of Human Rights (IACtHR), which serves as the benchmark and monitoring mechanism for the protection and States’ respect for human rights.
There have been several cases brought to the Commission and to the Court on the right to education. There have only been cases addressed in relation to indigenous peoples’ land rights and self-determination, one of the vulnerable populations that is researched within this thesis.270 The Court has referred to building schools and ensuring education as a remedy by the State for the communities. Shelton writes, “the Court unhesitatingly examines colonial policies and current assimilationist laws, challenging the elites that held power in the respondent states,”271 referring to the imperialistic policies affecting indigenous peoples. The Court has also ordered the
“assignment of teachers trained in intercultural and bilingual teaching for primary, secondary and comprehensive schooling”272 in the case of collective reparation measures in response to the 1982 Plan de Sanchez in Guatemala. “Paradoxically coming from a poverty-stricken region – is contributing to a new era of effectively dealing with violations of economic, social, and cultural
269 Ibid.
270 Dinah Shelton, “Who May Claim Redress?” in Remedies in International Human Rights Law, 241-256, 3rd ed. by Dinah Shelton, (United Kingdom: Oxford University Press, 2015). Shelton refers to as samples from indigenous cases at the Inter-American Court of Human Rights: Sawhoyamaxa Indigenous Community v. Paraguay (2006) Series C No. 14; Yakye Axe v. Paraguay (2006) Series C No. 142; Xámok Kásek Indigenous Community v. Paraguay (2010) Series C No. 214.
271 Shelton, “Restitution,” in Remedies in International Human Rights Law, 312-313, by Shelton. Referring to Saramaka People v. Suriname (2007) Series C No. 172.
272 Shelton, “Who May Claim,” 253; Plan de Sánchez Massacre v. Guatemala, Series C No. 116, (Inter-Am. C.H.R., 2004), para.
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rights,” The Inter-American Court of Human Rights (Inter-Am. C.H.R.) has taken a proactive role in advocating for this category of rights.273
The right to education in Latin America is considered mainly a social right, advancing the individual’s development, increasing their contribution to society, and as a right that everyone benefits from. According to the General Comment no. 12 of the CRC, if a child is excluded from a school or institution, the “decision must be subject to judicial review as it contradicts the child’s right to education.”274 Yet, the access to bring state violations on the right to education is not a simple task. Violations may consist of the enactment of discriminatory laws and policies, either formally or indirect, as well as omission of state support. In instances of such, victims of the right have a right to remedy and reparation as “a fundamental rule of international law, and forms part of customary international law.” 275
The right to education tends to show in courts linked with other rights, and rarely on its own, accentuating the interdependence of the right itself. A notion of “a decent life” in relation to children, as explained by Inter-Am. C.H.R. in an Advisory Opinion, “the right includes conditions of life which ensure dignity, the right to receive the highest priority and the best effort from states, the right to education, and the right to health.”276 In another instance, it has been linked to the
“right to existence of indigenous populations” alongside the right to health, and the right to property among others.277 The Inter-American Court of Human Rights in Caso de las NiZas Yean
273 Feria Tinta, “Justiciability of Economic, Social,” 432.
274 CRC/C/GC/12, 22.
275 Feria Tinta, “Justiciability of Economic, Social,” 439.
276 Advisory Opinion OC-17/2002, Series A: No 17, requested by the Inter-American Commission On Human Rights, (Int-Am. Ct H. R., Aug. 28, 2002).
277 Feria Tinta, “Justiciability of Economic,” 437.
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y Bosico v. República Dominicana (8 Sept. 2005)278 stressed the vitality of the right of children to quality education and the interplay with governments,
The Court placed particular importance on the right to education since “[it] contributes to the possibility of enjoying a dignified life and to the prevention of unfavorable situations for the minor and for society itself.” “It is mainly through education that the vulnerability of children is gradually overcome,” held the Court. This right would encompass not only the right to receive education (free and compulsory at least in the elementary stages) on the basis of equal opportunities but also the right to play and have recreation.”279
General Comments on Economic, Social and Cultural Rights have given States Parties a detailed layout of their expectations as the legal protectors and providers of these fundamental rights.
Within the General Comments, is the work of the Special Rapporteurs and the experts within the ESC Committee at the United Nations that have also “equally produced important authoritative means of construing obligations.” 280
The right to education is not absolute; however, it may not be arbitrarily violated or abused by the government without legal justification. Maintaining the right of non-discrimination and heighten protection for “vulnerable groups” (here referred to as marginalized groups) is essential in avoiding rights violations at times of national economic hardship.281Peru has been an active actor in the protection of arbitrary government action against social rights in the country. As such, it has generated case law on these types of cases, especially those related to labor and health care.
282 Even though there is justiciability with social rights, the State exercises a wide margin of
278 Ibid., 447. See Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Series C No. 79, (Inter-Am. C.H.R., Aug. 31, 2001);
Caso Comunidad indígena Yakye Axa v. Paraguay, Series C No. 125, (Inter-Am Ct H. R., June 17, 2005) [available in Spanish only].
279 Ibid. [Internal footnotes removed, emphasis added].
280 Ibid., 435. Mentioned in this essay is the work of Special Rapporteur Asbjørn Eide on the right to food in 1987.
281 Natalia Torres Zúñiga, “Justiciability of Regressive Measures of Social Rights. Some Reflections About Their Judicial Protection in Latin America,” Derecho PUCP, no. 75 (2015): 99-100. Referring to the notion of regressive rights.
282 Ibid., 99.
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appreciation, for which proportionality tests resembling the European Court of Human Rights jurisprudence on proportionality has been used throughout Latin American countries.